UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES B. BRYANT
1121 Savoy Street
San Diego, CA 92017
Plaintiff,
v.
DEPARTMENT OF THE NAVY
1000 Navy Pentagon
Washington, D.C. 20350-1000
Defendant.
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* Civil Action No. 1:19-cv- 02004
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COMPLAINT

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This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
et seq., as amended, seeking the production of agency records requested by the plaintiff
James B. Bryant from the defendant Department of the Navy.
JURISDICTION
1. This Court has both subject matter jurisdiction over this action and personal
jurisdiction over the defendant pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.
VENUE
2. Venue is appropriate under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391.
PARTIES
3. Plaintiff James B. Bryant (hereinafter “Plaintiff”) is a retired, submarinequalified, Navy captain who served 23 years on active duty after graduating from the
United States Naval Academy in 1971 and currently investigates, lectures, and writes

 about the 1963 loss at sea of the nuclear-powered fast attack submarine USS THRESHER
(SSN 563) (hereinafter “THRESHER”) and the accuracy of the Navy Court of Inquiry’s
(NCOI) report into the cause of that loss. Plaintiff’s Naval service included three tours
onboard THRESHER-class nuclear-powered fast attack submarines, including one tour as
the executive officer and one tour as the commanding officer. For the past two years,
Plaintiff has spent most of his time researching and writing on the THRESHER’s sinking
and the accuracy of the NCOI’s conclusions and opinions regarding the cause of that loss
with the intent to inform the public that the loss of THRESHER may have resulted from
the United States Government’s intentional or unintentional failure to use appropriate
precautions due to the tremendous pressure it was under to advance United States
technology during an intense period of military-geopolitical competition with the Soviet
Union.
4. Defendant Department of the Navy (hereinafter “Navy”) is an agency within
the meaning of 5 U.S.C. § 552(f) and is in possession and/or control of the records
requested by the plaintiff that are the subject of this action.
FACTUAL BACKGROUND
5. This FOIA lawsuit is brought under the Freedom of Information Act (“FOIA”).
It seeks production of the non-exempt portions of certain U.S. Government records
relating to the loss at sea of the THRESHER and the NCOI into that loss, as well as
records relevant to whether any information in the aforesaid records, all of which is
more than 56 years old, is specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy and
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 are in fact properly classified pursuant to such Executive order.
6. On information and believe, in the late 1950s and early 1960s, the United
States was in a great power competition with the Soviet Union. There were concerns
within the United States that we were losing this competition. In September 1961,
Soviet leader Nikita Khrushchev was pictured on the cover of Time magazine saying,
“We will bury you!” while the U.S. press and intelligence community were speculating
that Soviet intercontinental ballistic missiles were better than their U.S. equivalents.
7. On April 10, 1963, the THRESHER was lost at sea while performing a deep dive
test during sea trials, killing all 129 officers, sailors, and civilians onboard. The same
day, the Commander in Chief, United States Atlantic Fleet, ordered a NCOI to investigate
that loss at sea.
8. On or after June 5, 1963, the NCOI issued the report of its investigation and
opined that a flooding casualty in the engine room of the U.S.S. THRESHER was the most
probable cause of the submarine’s sinking. The NCOI also made a number of
recommendations, the bulk of which stated the need for the careful review of design,
construction, and inspection of vital submarine systems and operating procedures. The
NCOI also warned “[t]hat there is a danger that, in melding together fact and conjecture,
conjecture may be stretched too far and become accepted as fact, thus narrowing the
field of search for possible causes of the casualty” and “[t]hat the fact that the court has
singled out certain cases for study should not deter others, particularly members of the
crews of similar ships, from continuing to study the many questions raised by the

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 THRESHER’s loss.” These statements indicate the NCOI itself was not certain of the
cause of the THRESHER’s loss.
9. The NCOI report’s opinion that the most likely cause of the loss of THRESHER
was major, continuous flooding from a seawater pipe in the engine room has been
publicly questioned over the years.
a. A failure in the submarine’s control surfaces as a major factor and the
possibility that it was not major flooding is discussed in Death of the USS Thresher, The
Story Behind History’s Deadliest Submarine Accident, by Norman Polar and first
published in 1964 and revised in 2001.
b. Strong evidence that major flooding did not occur and that there was an
electrical problem is documented in Why the USS Thresher (SSN 593) Was Lost, by Bruce
Rule and published in 2017.
c. The Wretched Fate of THE USS Thresher, by Joseph Williams and published
online in 2019 (https://www.warhistoryonline.com/instant-articles/the-tragedy-of-ussthresher.html) echoes Rule’s book that electric plant issues were a major cause.
d. The source of the flooding from a failed silver brazed joint was downplayed in
a 1987 master of arts thesis, Effects of the USS THRESHER Disaster upon Submarine
Safety and Deep-Submergence Capabilities in the United States Navy by Philip Martin
Callaghan.
e. The NCOI directed a main ballast tank blow test on THRESHER’s sister
submarine, USS TINOSA (SSN 606), to determine why THRESHER’s main ballast tank
blow system failed. The description of this test in the NCOI report has three significant
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 differences from an eye witness report published by the Naval Submarine League in
June 2018 in their official publication, The Submarine Review titled, “The Tragic Loss of
the Nuclear Submarine THRESHER; 10 April 1963”; by Captain Zack Pate, Rear Admiral
David Gobel and Vice Admiral George Emery.
f. In 1976 John Bentley 1976 book, The THRESHER DISASTER, The Most Tragic
Dive in Submarine History notes that the Navy did not explain why there was a
submarine crew rescue capability of only 850 feet when THRESHER was capable of being
trapped on the ocean bottom at much deep depths.
10. The Navy has previously declassified portions of the NCOI’s report and
redacted copies of those portions are publicly available of the website of the Navy Judge
Advocate General. See
http://www.jag.navy.mil/library/investigations/USS%20THRESHER%20PT%201.pdf,
http://www.jag.navy.mil/library/investigations/USS%20THRESHER%20PT%202.pdf,
http://www.jag.navy.mil/library/investigations/USS%20THRESHER%20PT%203.pdf, and
http://www.jag.navy.mil/library/investigations/USS%20THRESHER%20PT%204.pdf. The
Navy included only 19 of approximately 1,700 pages of testimony in that release even
though more testimony had been given publicly and reported in the press.
11. On information and belief, Arlington National Cemetery plans to hold a
ceremony in late September 2019 to dedicate a memorial to 129 crewmembers and
civilians who were killed when the USS THRESHER was lost at sea. the submarine’s crew
will be dedicated at Arlington National Cemetery in Virginia, making this a fitting time to

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 reexamine the causes of the loss—if only the data on which the NCOI relied could be
made available before that ceremony.
12. This FOIA lawsuit seeks disclosure of the requested records in order to better
inform the public about the activities of the Navy/U.S. Government with respect to the
loss of the THRESHER and the officers, sailors, and civilians onboard; the adequacy of the
investigation thereinto; and the accuracy of the NCOI’s opinions as to the probable
cause of the THRESHER’s sinking. This lawsuit seeks expedited processing to ensure
disclosure before Arlington National Cemetery’s late September 2019 memorial
dedication.
13. The public interest in the requested records is further indicated by the fact
James D. Hornfischer, author of “The Last Stand of the Tin Can Sailors: The Extraordinary
World War II Story of the U.S. Navy’s Finest Hour” (Random House Publishing Group
2005), “Ship of Ghosts: The Story of the USS Houston, FDR’s Legendary Lost Cruiser, and
the Epic Saga of Her Survivors” (Random House Publishing Group 2007), “Neptune’s
Inferno: The U.S. Navy at Guadalcanal” (Random House Publishing Group 2012), and
“The Fleet at Flood Tide: America at Total War in the Pacific, 1944-1945” (Random
House Publishing Group 2016), has also submitted a FOIA request for THRESHER records
and Navy has added his request to Plaintiff’s FOIA Request for THRESHER records.
COUNT ONE
14. Plaintiff repeats and reallege paragraphs 5 through 13 above, inclusive.
15. By letter dated April 8, 2019, Plaintiff, through counsel, submitted to
Defendant Navy by online means and regular U.S. mail, a FOIA request (hereinafter “the
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 FOIA Request”).
16. The FOIA Request specifically sought copies of the below-identified records,
as defined for purposes of the FOIA in 5 U.S.C. § 552(f)(2) and interpreting case law,
created, received and/or maintained by any element of the Department of the Navy, as
defined in 10 U.S.C. §§ 8001(a) and 8061 (the “Navy”):
a. The Record of Proceedings of the NCOI on the loss of the USS THRESHER (SSN
593) including its transcript, exhibits, photographs, charts, graphs, memoranda, and
technical reports.
b. All records not duplicative of those responsive to the immediately preceding
request above that are the subject of the Request for Records Disposition Authority (SF
115) from the Department of the Navy, signed by the head, Records Management
Branch, dated 10/26/92 and given Job Number N1-181-92-2 by the National Archives
and Records Administration. The subject records are identified in block 8 of the
referenced form as:
Court of Inquiry on USS THRESHER (SSN 593), 2 cu.ft., 1963.
Record of Proceedings of the Court of Inquiry on the loss of the USS THRESHER
(SSN 593), convened at the U.S. Naval Base, Groton, CT, and the Portsmouth
Naval Shipyard, Portsmouth, NH, in April-May 1963. Records consists of a 12volume transcript of proceedings with exhibits, including photographs, charts,
graphs, memoranda, and technical reports. Records are located at the Boston
Federal Records Center in accession number 181-71-0157.

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 c. All records not duplicative of those responsive to the immediately preceding
requests above that were reviewed for declassification in response to OPNAV memo
5510 Ser N87/8U656047 of 30 Apr 98 that pertain to the loss of the USS THRESHER. A
copy of that memorandum is enclosure (2) for your convenience.
d. Copies of any written or electronic correspondence, or notes or memoranda
of oral communication, to or from the Secretary of the Navy and the President of the
United States, the National Security Advisor, the Secretary of Defense, the Archivist of
the United States, the Director of the Information Security Oversight Office, and/or the
Interagency Security Classification Panel or any official thereof, that mentions,
discusses, requests, or grants the exemption for any information currently classified in
the above-requested documents from the 25-year or 50-year automatic declassification
requirements in Section 3.3 of Executive Order 13526, entitled “Classified National
Security Information,” and dated December 29, 2009, or in a predecessor executive
order then in effect.
e. Copies of the first edition and second edition of the three-volume R. F. Cross
Associates, “Sea- Based Airborne Antisubmarine Warfare”, 1940–1977. This document
is reported to have been prepared for OP-95 and declassified on December 31, 1990.
f. If not included in the records responsive to requests above:
(1) All records--including LOFARGRAMs--of, mentioning, or discussing
THRESHER-related acoustic data recorded during the morning of April 10, 1963 when
THRESHER was lost, or that were reviewed an analyzed as part of the NCOI’s

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 investigation, and all records containing analysis or interpretation of this data. At one
time copies of these LOFARGRAMs were located at the Office of Naval Intelligence.
(2) All records mentioning the USS THRESHER’s Post Shakedown Availability
Weight Control weight and displacement change calculations and all records providing
ballasting or reballasting instructions to the persons, personnel, offices, divisions, shops,
or any organizational component of the Portsmouth Naval Shipyard responsible for
installing on and removing lead ballast from the USS THRESHER.
(3) The USS THRESHER was lost during a deep dive on the morning of April 10,
1963. All records discussing whether, or not and/or why or why not, the Main Coolant
Pumps on the USS THRESHER were or were not shifted to slow speed before the reactor
scrammed at about 0911 local time April 10, 1963; all records mentioning and/or
discussing why there was a variation in USS THRESHER’s Main Coolant Pump speed from
about 0909 to 0911 local time April 10, 1963; and all records mentioning or discussing
how all of the USS THRESHER’s Main Coolant Pumps stopped, slowed or could have
stopped or slowed on or about 0911 local time April 10, 1963.
(4) Any records created by, addressed or sent to, or mentioning strainers, orifice
plates or reducing valves manufactured by Marotta Control, Inc. or the Marotta
Engineering Company (hereinafter collectively as ‘Marotta’) and either mentioning the
USS THRESHER or dated between 1961 and the present; and any records of Navy and/or
THRESHER NCOI communications with, by, or mentioning Marotta and the installation,
removal, or nonremoval of equipment from the USS THRESHER prior to the USS
THRESHER’s systems becoming operational between 1961 and the present.
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 (5) All reports of or records mentioning or resulting from any pier side test of
USS TINOSA’s main ballast tank blow system conducted between 1961 and 1964.
(6) Any records of USS THRESHER sea-trial agenda and revised sea-trial agenda
provided to or created by the USS THRESHER commanding officer.
(7) All records created, sent, received, or maintained by Admiral Hyman G.
Rickover, U.S. Navy, when he was Director of Naval Reactors and that mention or
concern LOFARGRAMS of April 10, 1963, or that mention or concern the USS THRESHER.
(8) All records created, sent, received, or maintained by Francis Duncan or any
other Atomic Energy Commission or Department of Energy historian provided an office
at Naval Reactors Branch of the Bureau of Ships, that mention or concern LOFARGRAMS
of April 10, 1963, or that mention or concern the USS THRESHER.
17. The FOIA Request further requested a waiver of or, at a minimum, a
reduction in fees. The FOIA Request advised the Defendant that Plaintiff is working with
a team of researchers to reveal potential deficiencies or errors with the Navy’s
investigation into the loss of the THRESHER that could cast doubt on the reliability of the
NCOI’s conclusions and that Plaintiff intends to publish the results of his research and
analysis to the public on a wide scale. The FOIA Request further advised that in the
event that fees are ultimately assessed, Plaintiff is prepared to pay fees up to $500 and
that Defendant s contact counsel if fees were expected to exceed that amount.
18. The FOIA Request also requested expedited processing, noting FOIA permits
expedited processing when a “compelling need” exists. 5 U.S.C. § 552(a)(6)(E)(v).
Specifically, “compelling need” means “with respect to a request made by a person
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 primarily engaged in disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.” Id. at § 552(a)(6)(E)(v)(II). The
production of a fuller and more complete history of the THRESHER’s loss at sea and
information revealing the thoroughness, correctness, and sufficiency of the Navy’s
investigation into that loss remain of public interest.
19. Plaintiff intends to use information obtained through this FOIA request in
this effort and in other original works and has a demonstrated ability to publish the
requested information to the public at large or an interested segment thereof in writing,
by oral presentation, and by video presentation. He has the following publications and
presentations:
a. Captain Jim Bryant, “USS Thresher Disaster Still Matters,” Article in the
Portsmouth Herald, Portsmouth, NH April 1, 2018. (This article was included a few days
later in an official publication of the U.S. Submarine Force entitled Undersea Warfare
News; a copy is enclosure (3) for your convenience);
b. Bryant, James B, “Declassify the THRESHER Data,” Proceedings, July 2018, U.S.
Naval Institute) See,
https://www.usni.org/magazines/proceedings/2018/july/declassify-THRESHER-data;
c. Research Paper, “THRESHER Disaster: Technical Reanalysis by a Cold War
Submariner,” by Captain Jim Bryant, USN (Retired), submitted March 2018 to the
American Society of Naval Engineers for publication in their Naval Engineers Journal;
d. Presentation by Captain James B. Bryant, USN (Ret.) on the USS THRESHER
given at the San Diego Archeological Center on the THRESHER in September 2018. See,
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 https://www.kpbs.org/events/2018/sep/08/2nd-saturday-uss-THRESHERdisaster/?et=96338 and https://www.youtube.com/watch?v=CJTqyzVO7H4;
e. Bryant, James B., “Thresher Freedom of Information Act Request Yielding
Results,” Proceedings, May 2019 (U.S. Naval Institute) See,
https://www.usni.org/magazines/proceedings/2019/may/thresher-freedominformation-act-request-yielding-results; and
f. Plaintiff sought to publish an article entitled, “Quest for Depth,” in The
Submarine Review, which is published by the Naval Submarine League. This article
describes the development of the deep diving submarine that began in World War II and
resulted in the THRESHER class submarine. The intended publisher forwarded the
proposed article to the Navy. An officer assigned to the Undersea Warfare Division of
the Office of the Chief of Naval Operations (N97) in the Pentagon subsequently asserted
to Plaintiff that the article contains classified information and Naval Nuclear Propulsion
Information but has declined to identify that information to Plaintiff or to provide
Plaintiff with a redacted copy, thereby precluding Plaintiff from publishing the
information of no concern to the Navy. Plaintiff subsequently made his best guess to
identify and remove from the proposed article the information that might have been of
concern to the Navy. On June 26, 2018, Plaintiff submitted the revised article to the
Department of Defense, Defense Office of Prepublication and Security Review for
security review and approval for publication.
20. By email dated April 4, 2019 from admin@foiaonline.gov, the Navy
acknowledged receipt of the online submission and assigned the FOIA Request the Navy
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 Tracking Number DON-NAVY-2019-005669.
21. By email dated April 18, 2019, the Senior Freedom of Information Act
Coordinator for the Naval History and Heritage Command (NHHC) informed Plaintiff that
the NHHC had received Plaintiff’s FOIA Request and that she would be the primary point
of contact for the request.
22. By email dated April 18, 2019 from admin@foiaonline.gov, the Navy stated,
“Your request for Expedited Processing for the FOIA request DON-NAVY-2019-005669
has been denied.” The email further advised that “this is NOT a denial of your FOIA
Request, only a denial of your request for expedited processing” and that the “Naval
History and Heritage Command’s Freedom of Information Act Office will continue to
process your FOIA Request.” The email did not inform Plaintiff whether or not he could
appeal the denial of his request for expedited processing.
23. On May 3, 2019, Plaintiff’s counsel participated in a telephone call with
NHHC officials, including the Senior FOIA Coordinator, to discuss the referenced FOIA
request. During this call, Plaintiff’s counsel was advised that records pertaining to the
USS THRESHER’s loss at sea were not then in the custody of the NHHC because those
records were undergoing a declassification review by another element of the Navy and
that was expected to be completed by May 31, 2019. The NHHC officials also asked that
Plaintiff prioritize the order in which the various portions of his FOIA request should be
completed. Plaintiff, through counsel, supplied the requested prioritization by email
dated May 12, 2019.
24. By email dated May 3, 2019, the NHHC Senior FOIA Coordinator summarized
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 her recollection of the telephone conversation that occurred earlier that day and
advised that “this request has been placed in our complex queue due to ‘unusual
circumstances’ as we must examine voluminous records, and must coordinate the
review and release of these records with multiple Department of the Navy offices and
with other federal agencies. Once the review and coordination is complete, we will
determine if any information will be withheld under any other exemptions of the FOIA.
Because the date of completion will be beyond the 20 working day time limit of the
FOIA, I must inform you of your right to appeal due to the delay your request will
encounter. If you consider my response to be a denial of your request, you are entitled
to an administrative appeal in writing.”
25. By letter dated June 5, 2019, after learning the Navy declassification review
had not been completed, Plaintiff through counsel submitted an administrative appeal
of the Navy’s “denial of the referenced request by not releasing the requested records
or asserting justifications for withholdings within 30 days of receiving the referenced
request.” According to Secretary of the Navy Instruction 5720.42G, “Department of the
Navy Freedom of Information Act Program,” dated January 15, 2019, administrative
appeals of FOIA decisions must be made within 90 calendar days of the initial denial
authority’s final notice. The administrative appeal was timely submitted and Plaintiff
has exhausted his administrative remedies.
26. By email dated June 11, 2019, Navy acknowledged it received the FOIA
administrative appeal on June 5, 2019. Separately, Navy informed Plaintiff that his
appeal was assigned Appeal Tracking Number DON-NAVY-2019-007895. The statutory
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 deadline to respond to the administrative appeal expired on July 3, 2019.
27. As of the filing of this Complaint, Navy has improperly withheld agency
records from Plaintiff. Navy not released any of the requested records to Plaintiff.
Instead, all Plaintiff has received in response to the FOIA Request are digitalized copies
of 41 images that the National Archives and Records Administration (NARA) released to
Plaintiff, informing Plaintiff’s counsel that Defendant had referred parts of the request
to NARA, assigned the referral NARA FOIA Case Number RD 61141. NARA advised that it
had completed only the search of its image records. It has not completed or released
any documentary records. Defendant has not advised Plaintiff of any referrals
Defendant has made to other agencies.
28. As of the filing of this Complaint, Navy has neither provided Plaintiff with
estimated fees, granted Plaintiff’s request for a fee waiver or a reduction in fees,
expressly denied Plaintiff’s request for a fee waiver or a reduction in fees, nor advised
Plaintiff whether he has any rights to appeal the Navy’s lack of decision on his fee
waiver request. In these circumstances, Plaintiff is not required to submit an
administrative appeal of Navy’s failure to grant his request for a waiver or a reduction in
fees. To the extent Plaintiff is required to submit an administratively appeal Navy’s
failure to grant his request for a waiver or a reduction in fees, Plaintiff’s administrative
appeal submitted on June 5, 2019 constitutes such an administrative appeal.
WHEREFORE, Plaintiff prays that this Court:
(1) Order the defendant federal agency to process and release to Plaintiff all
non-exempt copies of responsive records and copies of all reasonable-segregable non15

 exempt portions of responsive records that contain properly exempt information;
(2) Order the defendant federal agency to waive all fees;
(3) Award reasonable costs and attorney’s fees as provided in 5 U.S.C.
§ 552(a)(4)(E) and/or 28 U.S.C. § 2412(d);
(4) Expedite this action in every way pursuant to 28 U.S.C. § 1657(a); and
(5) Grant such other relief as the Court may deem just and proper.
Date: July 5, 2019
Respectfully submitted,
/s/ Robert J. Eatinger, Jr.
__________________________
Robert J. Eatinger, Jr., Esq.
D.C. Bar #1035401
Dunlap Bennett & Ludwig, PLLC
8300 Boone Blvd
Suite 550
Vienna, VA 22182
(703) 291-8961
(703) 777-3656 fax
reatinger@dbllawyers.com
Attorney for Plaintiff

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 Case 1:19-cv-02004-TNM Document 10 Filed 08/05/19 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES B. BRYANT,
Plaintiff,
v.

Civil Action No. 19-2004 (TNM)

U.S. DEPARTMENT OF THE NAVY,
Defendant.
ANSWER
Defendant, U.S. Department of the Navy (“Defendant” or “the Navy”), by and through
undersigned counsel, hereby answers Plaintiff James B. Bryant’s Complaint as follows:
FIRST DEFENSE
Defendant has not improperly withheld any records under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552.
SECOND DEFENSE
The Complaint fails to state a claim upon which relief can be granted.
THIRD DEFENSE
Plaintiff is not entitled to costs in this action.
RESPONSES TO NUMBERED PARAGRAPHS
To the extent the Complaint refers to or quotes from external documents, statutes, or other
sources, Defendant may refer to such materials for their accurate and complete contents; however,
Defendant’s references are not intended to be, and should not be construed to be, an admission that
the cited materials: (a) are correctly cited or quoted by Plaintiffs; (b) are relevant to this, or another
action; and (c) are admissible in this, or any other, action.

 Case 1:19-cv-02004-TNM Document 10 Filed 08/05/19 Page 2 of 7

Defendant denies each allegation contained in the Complaint, except as hereinafter
expressly admitted. Defendant responds to the Complaint in like numbered paragraphs as follows:
1.

The allegations in this paragraph set forth Plaintiff’s statement of jurisdiction to

which no response is required. To the extent a response is deemed required, Defendant admits that
this Court has subject matter jurisdiction subject to the terms and limitations of foia.
2.

The allegations in this paragraph set forth Plaintiff’s statement of venue to which

no response is required. To the extent a response is deemed required, Defendant admits that this
District is a proper venue for this action.
3.

The allegations in this paragraph characterize Plaintiff’s personal history and his

interest in the USS Thresher. Defendant lacks knowledge or information sufficient to form a belief
as to the truth of the Plaintiff’s characterizations.
4.

Admit that the Department of the Navy is an agency within the meaning of

5 U.S.C. § 552(f) and is in possession and control of the USS Thresher collection of records;
however, Defendant lacks knowledge or information sufficient to form a belief as to whether the
Navy is in possession and/or control of the particular records Plaintiff sought through his FOIA
request.
5.

The allegations in this paragraph describe Plaintiff’s Complaint and his FOIA

request, and Defendant respectfully refers the Court to Plaintiff’s Complaint and FOIA request for
a complete and accurate description of their contents.
6.

The allegations contained in this paragraph do not set forth a claim for relief or aver

facts in support of a claim to which a response is required.
7.

The allegations contained in this paragraph do not set forth a claim for relief or aver

facts in support of a claim to which a response is required.

2
 

 Case 1:19-cv-02004-TNM Document 10 Filed 08/05/19 Page 3 of 7

8.

The allegations contained in this paragraph do not set forth a claim for relief or aver

facts in support of a claim to which a response is required.
9.

The allegations contained in this paragraph and its subparagraphs do not set forth a

claim for relief or aver facts in support of a claim to which a response is required.
10.

Admit that the Navy has previously declassified, redacted, and made available

portions of the USS Thresher Navy Court of Inquiry reports. The redacted records made available
speak for themselves and Defendant respectfully refers the Court to the records for a complete and
accurate description of their contents. Defendant denies any characterization of the records that is
inconsistent with their contents.
11.

The allegations contained in this paragraph do not set forth a claim for relief or aver

facts in support of a claim to which a response is required.
12.

The allegations in this paragraph characterize Plaintiff’s Complaint, and Defendant

respectfully refers the Court to the Complaint for a complete and accurate description of its
contents. Defendant denies any characterization of the Complaint request that is inconsistent with
its contents.
13.

The allegations contained in this paragraph do not set forth a claim for relief or aver

facts in support of a claim to which a response is required.
14.

Defendant re-alleges and incorporates by reference all of the forgoing answers to

the Complaint as though fully set forth herein.
15.

Defendant admits that Plaintiff submitted a FOIA request on April 8, 2019, and

respectfully refers the Court to the letter for a complete and accurate description of its contents.
Defendant denies any characterization of the letter that is inconsistent with its contents.

3
 

 Case 1:19-cv-02004-TNM Document 10 Filed 08/05/19 Page 4 of 7

16.

The allegations contained in this paragraph and its subparagraphs describe

Plaintiff’s FOIA request, which Defendant admits that it received on April 8, 2019. Defendant
respectfully refers the Court to the FOIA request for a complete and accurate description of its
contents. Defendant denies any characterization of the FOIA request that is inconsistent with its
contents.
17.

The allegations in this paragraph characterize Plaintiff’s FOIA request of

April 8, 2019, and Defendant respectfully refers the Court to the letter for a complete and accurate
description of its contents. Defendant denies any characterization of the letter that is inconsistent
with its contents.
18.

The allegations in the first sentence of this paragraph characterize Plaintiff’s FOIA

request of April 8, 2019, which speaks for itself, and Defendant respectfully refers the Court to the
letter for a complete and accurate description of its contents.

Defendant denies any

characterization of the letter that is inconsistent with the contents. The allegations in sentences
two and three of this paragraph consist of conclusions of law and do not require a response. To
the extent a response is required, deny.
19.

The allegations contained in this paragraph and its subparagraphs do not set forth a

claim for relief or aver facts in support of a claim to which a response is required.
20.

Defendant admits to the accuracy of the tracking number detailed in this paragraph.

Defendant otherwise lacks sufficient information to admit or deny the alleged an email response
to Plaintiff on or about April 4, 2019. To the extend this email exists, Defendant respectfully refers
the Court to the email for a full and complete statement of its contents. Defendant denies any
characterization of the email that is inconsistent with its contents.

4
 

 Case 1:19-cv-02004-TNM Document 10 Filed 08/05/19 Page 5 of 7

21.

The allegations contained in this paragraph characterize an April 18, 2019, e-mail

communication between Plaintiff and Defendant, and Defendant respectfully refers the Court to
the email for a full and complete statement of its contents. Defendant denies any characterization
of the e-mail that is inconsistent with the contents.
22.

The allegations contained in this paragraph characterize an April 18, 2019, e-mail

communication between Plaintiff and Defendant, and Defendant respectfully refers the Court to
the email for a full and complete statement of its contents. Defendant denies any characterization
of the e-mail that is inconsistent with the contents.
23.

Admit.

24.

The allegations contained in this paragraph characterize a May 3, 2019, e-mail and

Defendant respectfully refers the Court to the email for a full and complete statement of its
contents. Defendant denies any characterization of the e-mail that is inconsistent with the contents.
25.

Defendant has insufficient information to admit or deny Plaintiff’s allegations with

respect to the timing of the letter referenced in this paragraph. Defendant otherwise respectfully
refers the Court to Navy Instruction (SECNAVINST) 5720.42G, for a full and complete statement
of its contents. Defendant denies any characterization of Navy Instruction 5720.42G that is
inconsistent with the contents.
26.

The allegations contained in this paragraph characterize an email of June 11, 2019.

Defendant respectfully refers the Court to the email for a full and complete statement of its
contents. Defendant denies any characterization of the e-mail that is inconsistent with the contents.
Deny the remainder of the allegations in this paragraph, which state conclusions of law and do not
require a response. To the extent a response is required, deny.

5
 

 Case 1:19-cv-02004-TNM Document 10 Filed 08/05/19 Page 6 of 7

27.

Deny the first sentence of this paragraph, which contains conclusions of law and

does not require a response. Admit that at the filing of the Complaint, Naval History and Heritage
Command had not released any requested records to Plaintiff. The allegations in the third sentence
of this paragraph characterize a letter from Defendant to Plaintiff, and Defendant respectfully
refers the Court to the letter for a full and complete statement of its contents. Admit that at the time
of the filing of the Complaint, Defendant had not advised Plaintiff of referrals to other agencies or
agency components.
28.

This paragraph contains conclusions of law to which no response is required. To

the extent that a response is deemed necessary, deny. This paragraph also contains allegations
regarding Plaintiff’s FOIA appeal letter of June 5, 2019, which speaks for itself, and Defendant
respectfully refers the Court to the letter for a full and complete description of its contents. Deny
that the June 5, 2019, appeal exhausted administrative remedies for fee waivers and/or reductions
and aver that Plaintiff failed to request review or relief for this issue in his prior administrative
appeal.
The remaining paragraph constitutes a prayer for relief to which no answer is required. To
the extent a response is deemed required, Defendant denies that Plaintiff is entitled to the relief
requested or to any relief whatsoever.

6
 

 Case 1:19-cv-02004-TNM Document 10 Filed 08/05/19 Page 7 of 7

Dated: August 5, 2019

Respectfully Submitted,
JESSIE K. LIU
D.C. Bar # 472845
United States Attorney
DANIEL F. VAN HORN
D.C. Bar # 924092
Chief, Civil Division
By: /s/ Joshua L. Rogers
JOSHUA L. ROGERS
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
Tel: (202) 252-2578
Joshua.Rogers3@usdoj.gov

7
 

  

DEPARTMENT OF THE NAVY
OFFICE OF ms CHEF or NAVAL OPERATIONS
2000 NAVY Penman?:
WASHINGTON, DC 20350-2000

 

02 Feb 12

MEMORANDUM FOR THE RECORD
Subj: USS SCORPION AND USS THRESHER RECORDS DISPOSITION

Encl: (1) seesaw Memo OPA Ser/Ulld-SB 5 May 98
(2) N37 Memo Ser 30 Apr 93

1. The current disposition of USS SCORPION and USS THRESHER records has been
reviewed by the Director of Undersea Warfare (N87).

2. This office no longer intends a one-time public release of all records
associated with USS SCORPION and USS THRESHER, and will not establish an
electronic reading room on the Naval History and Heritage Command (NHHC)
website. This material is mostly technical in nature, largely pertains to
the subsequent search efforts, and does not contribute to any better
understanding of the losses of USS and USS THRESHER. The publicity
associated with such a release, and especially since the material does not
add significantly to the historical record or provide any additiOnal closure,
will be unnecessarily traumatic for the remaining families and next of kin.

3. The records will continue to be managed in accordance with standard Navy
policy and due process per the Freedom of Information Act with the
exception of the original Courts of Inquiry (which are maintained by the
Office of the Judge Advocate General), all records are consolidated,
preserved, and maintained at NHHC, and are subject to systematic
declassification reviews by CNO N09N2 per Executive Order 13526.
Approximately 75% of the records have been declassified and are available for
public release through FOIA. The remaining records are classified and are
subject to redaction through a mandatory declassification review process
before being released.

4. This disposition is a deviation from the records storage guidance of the
Navy Records Management Manual (SECNAV 5210.1 rev 1), SSIC 5750.2 (Records of
Exceptional Historical Significance), which would transfer the records to the
National Archives and Records Administration for storage at either the
Federal Records Center in Suitland, Maryland, or at the National Archives in
Washington, D.C. This disposition was approved by the Secretary of the Navy
in 1998 per enclosures and (2), and was confirmed to be valid with NHHC,
the Director of Navy Records, and NARA per the deviation guidance of Part 2
Para 2 of SECNAV 5210.1 rev 1.

 

Sub]: USS SCORPION AND USS THRESHER RECORDS DISPOSITION

5. This deviation is based on the heightened public and Navy interest in the
loss of USS SCORPION and USS THRESHBE, and the large scape and variety of the
records associated with them. which are not fully accounted for in the SECNKV
instruction. Maintenance of the records at NHHC ensures that the records are
censolidated in a single location and managed by professional archivists who
are familiar with the sensitivity of their contents and background. -Trans?er
and interim storage at a Federal Records Center. followed by a subsequent
transfer and storage at National Archives, would complicate accessibility to
the material which is required by the frequency of received FOIA requests.
Additionally, records management by individuals not associated with the
submarine community risks inadvertent release of sensitive information
traumatic to surviving family members and next of kin.

6. This disposition. and the rationale in paragraph 5 above. may be
periodically reassessed at the discretion of the Director of undersea warfare
(N87).

7. Any questions or concerns regarding USS SCORPION and USS THRESHER records
should be directed to the Director of undersea Warfare (N87) at (703) 614-

Adam??9

B. L. BRUNER
RDML USN